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Terms and Conditions

MerchantSuite Services Terms of Use ("Agreement") BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT OR BY OTHERWISE ACCEPTING OUR SERVICES OR USING THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT.

1. (Definitions) In this Agreement:

"Account" means the account, logon name and password, provided by Us to You for the purpose of You accessing and using the System.

"Acquiring Bank" means the bank or financial institution that You nominate to process credit or debit card payments on Your behalf.

"Administrator Profile User" means a User on Your Account who can create and delete, or revoke the authorisation of, other Users and who administers the payments of Your Fees.

"Business Day" means a day which is not a Saturday, Sunday or a national public holiday in Australia.

"Confidential Information" means all Information disclosed by a party to the other, whether orally or in writing, that is designated as confidential or that ought reasonably be understood to be confidential. Information will not be Confidential Information where:

it is in, or enters into, the public domain without any breach of this Agreement by the Receiving Party;

it was known to the Receiving Party prior to disclosure by the Disclosing Party;

it is received from a third party otherwise than in breach of an obligation to the Disclosing Party; or

it was independently developed by the Receiving Party.

"Customer" means any third party who owes You money for goods or services which You have or will supply to them.

"Data" means Information contained in Transactions; Information You enter into the System and the results of processing Information as part of Your use of the Services.

"Disclosing Party" means a party disclosing Confidential Information to the other.

"Effective Date" means the date You accept this Agreement by indicating Your acceptance on Our Website or by executing an Order that references this Agreement.

"Fee" means the applicable fees (exclusive of all applicable taxes) payable pursuant to this Agreement, in accordance with the Pricing Page, for the Services You elect to Use, and includes annual fees, monthly fees and usage fees.

"Information" includes, but is not limited to, all Orders, Data, records, reports, documents, instruction manuals, code and other data (including without limitation data in electronic form) We provide to You in connection with this Agreement.

"Intellectual Property" means any intellectual or industrial property including without limitation any patent, trade mark or service mark, copyright, design, business name, trade secret, know-how or business process.

"Malicious Code" means code which contains a virus, worm, trojan horse or any other harmful or malicious component or program.

"Month" means a calendar month. If a period of months commences on a date in a month and there is no corresponding date in the month in which it is to end, it will end on the last Business Day of that month.

"Order" means the online forms, work requests, or written proposals for purchase of Services entered into between You and Us from time to time, including by Your completion of a form on the Web Portal.

"Payment Scheme" means each of the MasterCard, Visa, American Express, Diners Club, or other similar payment schemes.

"Personal Information" means the contact name, email address, mailing address and telephone number which You provide as part of the registration process.

"Pricing Page" means Our Pricing Page, as varied from time to time, available at www.MerchantSuite.com or any other internet site notified by Us.

"Receiving Party" means a party receiving Confidential Information from the other.

"Services" means the services We provide as described on the Website and the Pricing Page, that are ordered by You under an Order or as part of a free trial (where available), as modified by Us from time to time. The Services include, without limitation, the processing of Transactions by the Software, the monitoring and controlling of Transactions by a business process, the extraction, storage and use of Data by the Software, the business applications provided by Us that you may elect to use as specified in an Order, any professional services We agree to provide at Your request to assist You in designing, building and testing solutions, and any assistance We provide to You.

"Software" means any software which is used to provide any part of the Services, including the 'MerchantSuite' software.

"We, Us, Our" means MerchantSuite Pty Ltd (ABN 68 164 027 927), and any related body corporate or subsidiary of another entity of which We are also a subsidiary, as those terms are defined in the Corporations Act 2001 (Cth).

"You, Your" means the entity that has registered to use the Services pursuant to this Agreement and, where the context requires, includes each of Your Users.

"Your Data" means all Data or Information submitted by You to the System through Your Use of the Services.

2. (Provision of Services)

Subject to You complying with Your payment obligations under this Agreement at all times, We will provide the Services to You on the terms of this Agreement.

We may make one or more of the Services available to You on a trial basis, as described on the Website. If You are provided with Services on a trial basis, You will be permitted to use the Services on the terms of this agreement without charge until the end of the free trial period or the commencement of any Order made by You. During the trial period, your Use of the Services may be restricted, including by not allowing you to process Transactions. We will start charging You Fees for the Software and Services at the end of the free trial period, in accordance with clause 14, without further notice to you. If You do not wish to Use the Software or Services, or parts of the Software or Services, beyond the free trial period, You must provide notification of this to Us before the end of the trial period. Notwithstanding clauses 9 and 10, during a free trial Services are provided without warranty.

We reserve the right to modify or alter the Services at any time.

3. (Your Password) You will choose or be provided with a logon name and password to enable You to use the System and the Services. You undertake not to disclose the password to any third party and take all reasonable measures to prevent disclosure of the password to any third parties. You are liable for all use which is made of the Services using Your password.

4. (Restrictions on the Services)

(Purpose) This Agreement relates solely to the use of the Services for Your own internal business requirements and, except as permitted by this or any other Agreement with Us or by an Order, does not permit You to use the Services to process Data on behalf of any other person. Without limitation You are not, unless we otherwise agree in writing, permitted to provide the Services on an application service provider basis, resell the Services or to use the Services to provide any outsourcing or bureau services. If You require use of the Services for these purposes then You should contact Us to make arrangements for obtaining the appropriate rights.

(Other usage limitations) Services may be subject to other limitations as notified on the Website, such as, for example, the period of time Data may be stored on the System or the amount of Data stored on the System.

5. (Use of Services by Customers) We will not be responsible for any damages or loss suffered by You or Your Customers arising (directly or indirectly) from or in connection with their use of the Services. You indemnify Us against all actions, claims, loss, damages, costs and expenses (including without limitation legal costs) arising (directly or indirectly) from or in connection with Your or Your Customer's use of the Services.

6. (Term)

This Agreement commences on the Effective Date and continues until this Agreement is terminated pursuant to clause 18.

7. (Use of the Services)

We shall maintain appropriate administrative, physical, and technical safeguards for the protection of the security of the Services and the confidentiality of Your Data.

We shall ensure that the Software is at all times compliant with the requirements of the Payment Card Industry Data Security Standard as it applies to Tier 1 businesses.

In the event that there is any outage or interruption to the Services, We will use commercially reasonable efforts to return the Services to the usual standard of service in accordance with Our published service levels.

We will be entitled to access the System and Your Data at any time in order to:

perform any maintenance on the System which We consider necessary;

perform any work on the System which is required under any applicable laws or Payment Scheme regulations and guidelines;

determine whether You are complying with Your obligations under this Agreement; and

to remove any material, Information or Data We consider has entered onto the System in breach of the terms of this Agreement.

8. (Your Acknowledgements)

You acknowledge and agree that:

The internet is accessible to anyone with the appropriate technical capability and that it is impossible to totally protect the System (including Your Data and any of Your business or other Information contained in Your Data) from the actions of third parties, including other Users of the System;

You are responsible for ensuring that Your own business Information and Information Technology systems are protected against the actions of third parties;

You are responsible for ensuring that Your connection and the device You are using to connect to the System are secure and free of Malicious Code;

Except as expressly stated in this Agreement We are not making, and that no person acting on Our behalf has made, any warranty or representation as to the Services’ performance characteristics, merchantability or suitability for any particular purpose. All such warranties and conditions are hereby excluded to the maximum extent permitted by law;

Your purchase of the Services has not been made on the basis of any representations made by Us regarding future features or functionality of the Services;

We do not warrant that Your use of the System will be free from any interruption or delay, nor do We warrant that the System will be free from any errors, defects or faults, nor that the System will always be secure. We may temporarily suspend availability of the System where upgrades, repair or maintenance are (in Our absolute discretion) required. We will use reasonable efforts to notify You via the Website at least 8 hours prior to doing so. Our sole obligation in relation to any unavailability, errors, defects or failure in security affecting the System will be to use commercially reasonable efforts to repair or correct the System (as the case may be); and

All rights in the Software are owned by Us or Our licensors and You must not at any time make any statement or do anything which is inconsistent with that ownership.

9. (Mutual Warranties)

Each party warrants that:

It has the full power and authority to enter into this Agreement and perform their obligations hereunder; and

It will not transmit to the other any Malicious Code.

10. (Our Warranties)

We warrant that to the best of Our knowledge the Services do not infringe any third party Intellectual Property rights. Your exclusive remedy for a breach of this warranty is as set out in clause 18.

11. (Your Warranties)

You warrant that:

If You are a natural person, You are 18 years of age or older;

All information you have supplied to Us, and all information that We have received about You, is true and correct and You will maintain the currency of that information by updating Us as soon as practicable after you become aware of any change;

You are solely responsible for maintaining the security of Data You hold or process and You will be responsible for any loss or damages arising (directly or indirectly) as a result of Your failure to do so;

If there is any breach of Your security, or Data you hold or process is compromised, you will immediately notify Us;

You will not change, modify, delete, interfere with or otherwise deal with any third party’s Data;

You will ensure that all people who use the System with Your permission or consent comply with the terms of this Agreement;

All material uploaded, displayed or transmitted by You in connection with Your use of the Services will not be false, offensive, defamatory, threatening, obscene, unlawful or infringe any third party’s rights (including without limitation their Intellectual Property rights);

You will not use the Services in a way which disrupts, interferes with or restricts the use of the System by any third party or contravenes any applicable laws (including without limitation, the applicable privacy laws) or otherwise than as contemplated by this Agreement;

You will not do anything, or use the Services in any way that fails to meet the security or fraud standards established by the Payment Schemes;

You will not do anything, or use the Services for any purpose, which We may deem to be illegal or unethical, or which in any way exposes Us to the risk of investigation or legal action, or which may in any way adversely affect Us, Our reputation, Our brand, or Our employees;

You are solely responsible for maintaining the confidentiality and security of Your password(s) and You will be responsible for any loss or damages arising (directly or indirectly) as a result of Your failure to do so;

You consent to Us publicising the existence (but not the terms) of the relationship contemplated hereunder as a part of promotional and marketing activities from time to time by Us.

You will not do anything which is inconsistent with Our rights in the System, the Software or under this Agreement, including without limitation removing any trademarks, copyright or other proprietary notices contained in or appearing on any material You download from the System, downloading the Software from the System, reverse-engineering the Software or replicating the Software; and

You will not do any other thing in connection with the Software or the System which is not expressly authorized by this or another Agreement with Us, the Website or an Order.

12. (Implied Warranties)

TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXCLUDE ALL IMPLIED WARRANTIES, IN CONNECTION WITH THE PROVISION OF THE SERVICES.

13. (Privacy)

You acknowledge and agree that We may use Personal Information which You provide to Us under this Agreement for the purposes of exercising Our rights or performing Our obligations under this Agreement. We agree to handle Your Personal Information at all times in compliance with applicable privacy laws and our Privacy Policy.

14. (Payment)

(Fees Payable) From the Effective Date or, if applicable, the end of a trial period You agree to pay an annual fee, monthly fees, usage fees and any other Fees that may apply, in accordance with the Pricing Page and as may, subject to clause 14.c, be varied by Us from time to time.

(Fee Conditions) Except as otherwise expressly stated in this Agreement or in the applicable Order:

Fees are non-refundable;

Monthly Fees are based on consecutive Monthly periods that begin on the Effective Date;

Monthly Fees will be debited from Your nominated debit, credit or other account between 1 and 5 Business Days of the Effective Date monthly anniversary.

(Change to Fees) We reserve the right to modify the Fees payable under this Agreement or in relation to the Services, effective upon Us providing you 1 Months' notice of such change. Continuing use of the Service after any such notice shall constitute Your acceptance of such modifications.

(Invoices) We will invoice You as specified on the Pricing Page by sending You an electronic invoice for the applicable Fees by email. You agree to Us debiting the invoiced Fees from your nominated debit, credit or other account unless otherwise stated in the Order.

(Overdue Fees) If any Fees are not paid (or We have been unable to debit them) within 10 days of the due date, We may charge You interest at the rate of 1.5% per Month on the outstanding balance. Interest may be charged in respect of an overdue payment from its due date until the date it is paid.

(Suspension)

If any Fees are not paid by You (or We are unable to debit them) within 30 days of the due date, We may suspend Our Services to You, and Your Account, and restrict Your access to the System, until such Fees and any interest applied under clause (e) are paid in full.

If any Fees are not paid by You (or We are unable to debit them) and more than 1000 Transactions have been processed since the date those Fees were due, notwithstanding clause (i), We may suspend Our Services to You, and Your Account, and restrict Your access to the System until such Fees and any interest applied under clause (e) are paid in full.

(Legal Fees) Upon request by Us, You shall pay all of Our reasonably incurred legal fees and other costs incurred by Us in attempting to collect overdue Fees from You.

(Account Suspension) Where Your Account has been suspended under clause (f), or for any other reason:

and you wish to have Your Account reactivated, We reserve the right to charge You any and all overdue Fees, interest applied under clause (e) and any fees or costs incurred by Us under clause (g) to Us, before We reactivate your Account.

and you wish to open a new Account, we reserve the right to charge any and all overdue Fees, interest applied under clause (e) and any fees or costs incurred by Us under clause (g) relating to Your suspended Account to that new Account.

(Bank Fees) Your bank may charge you fees for a merchant facility. Please refer to your bank for a list of all applicable fees.

15. (Taxes)

Unless stated otherwise, the amounts payable under this Agreement are exclusive of the Australian Goods and Services Tax, if applicable, and any sales tax, goods and services tax, value added tax, or similar tax arising from this Agreement which becomes due in any jurisdiction. You acknowledge that it is Your responsibility to pay any sales tax, goods and services tax, value added tax, or similar tax arising from this Agreement which becomes due in any jurisdiction. If You are required by any law to pay withholding tax on the monies payable to Us under this Agreement, the total amount of the monies payable to Us under this Agreement will be increased by an amount such that the amount which You will in fact pay to Us after the deduction of withholding tax is equal to the amount stated as being payable to Us under this Agreement.

16. (Modification of Terms)

We reserve the right to modify terms and conditions of this Agreement at any time, effective upon notifying You of an updated version of this Agreement, in accordance with the notification requirements in clause 32 or by way of notification on the Website, and Your acceptance of the modifications. Continuing use of the Service after any such notification shall constitute Your acceptance of such modifications.

17. (Liability)

(Limitation of Liability) EXCEPT FOR IN THE CASE OF WILFUL BREACH OF THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY, THEIR DIRECTORS, SERVANTS, AGENTS AND LICENSORS ARE EXCLUDED FROM ALL FORMS OF DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE AND FROM LOSS OF PROFITS, LOSS OF DATA, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE CAUSED BY NEGLIGENCE. WHERE RELEVANT LEGISLATION DOES NOT PERMIT OUR LIABILITY TO BE LIMITED IN THIS WAY THEN, IF PERMITTED BY THAT LEGISLATION, OUR LIABILITY WILL BE LIMITED TO THE SUPPLY OF THE RELEVANT SERVICES AGAIN, OR THE PAYMENT OF THE COST OF HAVING THE RELEVANT SERVICES SUPPLIED AGAIN. FOR THE PURPOSES OF THIS CLAUSE 17, A PARTY IS, OR WILL BE TAKEN TO BE, ACTING AS AGENT OR TRUSTEE ON BEHALF OF AND FOR THE BENEFIT OF ITS DIRECTORS, SERVANTS, AGENTS AND LICENSORS.

(Disclaimer) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, YOU AGREE THAT WE SHALL NOT BE LIABLE FOR ANY LOSS HOWEVER OCCURRING (INCLUDING NEGLIGENCE) ARISING FROM OR IN RELATION TO:

YOUR FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE THE SYSTEM;

FRAUDULENT TRANSACTIONS PROCESSED THROUGH THE SYSTEM;

INTERRUPTION TO THE SERVICES OR SYSTEM BY ANY MEANS, INCLUDING, WITHOUT LIMITATION, BY WAY OF MALICIOUS CODE OR ANY OTHER TECHNOLOGY;

ACTIONS OR INACTIONS OF ANY THIRD PARTY; AND

THE LIMITATIONS OF THE SYSTEM, OUR SERVICES OR ANY OF OUR TECHNOLOGY.

(Cap on Liability) OUR LIABILITY FOR ANY CLAIM OR SERIES OF RELATED CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU UNDER THIS AGREEMENT IN THE 2 MONTHS PRECEDING THE CLAIM ARISING. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE LAST SUCH CLAIM ARISING.

(Indemnity by You) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, YOU WILL INDEMNIFY US AGAINST ANY ACTION, CLAIM, LOSS, DAMAGE, LIABILITY, COST AND EXPENSE THAT MAY BE INCURRED OR SUSTAINED BY US ARISING OUT OF ANY ACT, MATTER OR THING DONE, PERMITTED OR OMITTED TO BE DONE BY YOU, YOUR EMPLOYEES OR YOUR REPRESENTATIVES IN RELATION TO:

YOUR BREACH OR ALLEGED BREACH OF ANY WARRANTY, REPRESENTATION OR OBLIGATION UNDER THIS AGREEMENT;

ANY ACTION, CLAIM, LOSS, DAMAGE, LIABILITY, COST AND EXPENSE SOUGHT BY YOUR CUSTOMERS AGAINST YOU OR US; AND

YOUR FAILURE OR ALLEGED FAILURE TO COMPLY WITH ANY LAWS, REGULATIONS, OR DIRECTION OF ANY GOVERNMENT OR A GOVERNMENTAL, SEMI-GOVERNMENTAL OR JUDICIAL ENTITY OR AUTHORITY OR PAYMENT SCHEME.

18. (Termination)

(Termination by You) You will be entitled to terminate this Agreement with immediate effect from the date We receive written notification of such termination from You from the Administrator Profile User. You may terminate this Agreement in whole or with respect to particular Services only.

(Termination by Us) We will be entitled to terminate this Agreement either in whole or with respect to particular Services only with:

effect from the date that is 30 days after You receive written notification of such termination from Us;

immediate effect from the date; We are directed by the operator of a Payment Scheme or a government, semi-governmental or judicial entity or authority or Your chosen Acquiring Bank to terminate, suspend, or otherwise cease providing the Services to you;

immediate effect from the date You breach any of Your Warranties; or.

(Automatic Termination) If You notify Us that you do not wish to Use particular Software or Services beyond the relevant free trial period then this Agreement will terminate with respect to those Services and Software at the end of the free trial period without the need for any notice. If this Agreement is at any time terminated with respect to all of the Services that You were receiving from Us then this Agreement will be terminated at that time without the need for any notice.

(Your Termination Duties) Upon termination of this Agreement, You must:

immediately cease using the Services and Software and delete all copies of any electronic documentation You received from Us relating to the Services and Software; and

pay all Fees and reimburse Us for any costs which are payable to Us as at the date of termination. For the avoidance of doubt, and subject to clause (e), all Fees paid to Us under this Agreement are not refundable. Termination will not relieve You of the obligation to pay any Fees due to Us prior to termination. Termination of this Agreement under this clause 18 will not limit Us from pursuing any other remedies available to Us.

(Our Termination Duties) Upon termination of this Agreement by Us under subclause 18(b)(i), We will refund You the pro-rata amount of Usage Fees:

relating to the period after the effective date of termination; or

for Usage that has not been Used as at the effective date of termination, whichever is the lesser.

(Return of Your Data) Upon request by You made within 1 Month after the effective date of termination (of non-trial services only), We will make available to You for download a file of Your Data. We shall have no obligation to maintain or provide any of Your Data to You after 1 Month. After 1 Month We will, as far as permitted by law and to the extent practicable, delete all of Your Data in Our possession or under Our control.

19. (Intellectual Property Rights)

All Intellectual Property rights in the Services and the technology used to provide the Services (including but not limited to the Software, System, Website, Web Portal and any materials We provide to You under this Agreement), and any amendments, improvements and enhancements thereto, are owned by Us and will not be transferred to You under this Agreement.

You shall not copy, or otherwise infringe Our Intellectual Property rights in, any part of the Services or the technology (including but not limited to the Software, System, Website, Web Portal and any materials We provide to You under this Agreement) used to provide the Services except as expressly permitted by this Agreement.

Subject to applicable copyright laws, You will exclusively own the Intellectual Property rights in Your Data that is created by You as part of Your use of the Services.

We grant to You a worldwide, royalty-free, non-exclusive licence to use and exercise such Intellectual Property owned or held by Us for the purposes of using the Services and Software for the term of this Agreement.

By giving any feedback to Us, including making suggestions or requesting enhancements, You grant to Us a royalty-free, worldwide, transferable, irrevocable, perpetual licence to use or incorporate any aspect of Your feedback into the Services. The licence includes a right to sub-licence.

20. (Confidentiality) Each party must treat as confidential and not disclose the other party's Confidential Information other than as provided under this clause or as permitted in writing by the Disclosing Party. A party may disclose any of the Confidential Information to:

Comply with any applicable law or requirement of any governmental agency; or

Any of either party’s employees to whom it is necessary to disclose the Information for purposes consistent with this Agreement, provided that those persons undertake to keep the Information confidential.

21. (Compelled disclosure of Information) Where Confidential Information is disclosed as a result of a legal compulsion, the party making the disclosure must notify the Disclosing Party in writing prior to the disclosure.

22. (Assignment and Subcontracting)

(By You) You must not assign or subcontract your rights or obligations under this Agreement without Our prior written consent.

(By Us) We may assign or subcontract our rights or obligations under this Agreement at Our absolute discretion.

23. (Waiver) Failure by either party to exercise or enforce any term of this Agreement will not be deemed a waiver of enforcement of that term or any other term. Other than as stated in this Agreement, the remedies provided are in addition to any other remedies available to a party at equity or law.

24. (Entire Agreement) This Agreement, including all Orders, constitutes the entire agreement of the parties with respect to its subject matter and supersedes all prior agreements, communications, representations and understandings related to its subject matter. No amendment or waiver of any provision of this Agreement shall be effective unless made in writing and either signed or accepted electronically by the party against whom the amendment or waiver is to be asserted.

25. (Inconsistencies) To the extent of any inconsistency between the provisions in the body of this Agreement and any Order, the terms of the Order shall prevail.

26. (Further Assurances) At the reasonable request of the other party, a party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the actions contemplated by it.

27. (Force Majeure) A party is not liable for any delay or failure to perform an obligation (other than to pay money) under this Agreement to the extent that such delay or failure is beyond that party's reasonable control.

28. (No Agency or Partnership) Nothing in this Agreement is to be construed as constituting an agency, partnership, joint venture, or any other form of association between the parties in which one party may be liable for the acts or omissions of any other party. No party has the authority to incur any obligation or make any representation or warranty on behalf of, or to pledge the credit of, any other party.

29. (Governing Law) Each party agrees that this Agreement is governed by and will be construed in accordance with the laws of the State of Victoria, Australia, and is subject to the exclusive jurisdiction of the courts of Victoria. The 1980 United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

30. (Enforceability) Any provision of this Agreement that is prohibited or unenforceable in a jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement nor affect the validity or enforcement of that provision in any other jurisdiction.

Subject to clause (b), any notice to be given under this Agreement by Us will be sent by email to the email address You provide for registration (or otherwise as notified to Us in writing), and You must direct any notices to Us to Our email address below.

Where a provision of this Agreement expressly requires "written notification" to be given, that notice must be given either by fax or by post, and not by email.

A notice delivered by post will be conclusively taken to be duly given or made two Business Days after the date of posting (if posted to an address in the same country) or seven Business Days after the date of posting (if posted to an address in another country).

A notice delivered by email will be conclusively taken to be duly given or made at the earlier of:

the time that the sender receives an automated message from the intended recipient's information system confirming delivery of the email; and

the time that the email is first opened or read by the intended recipient, or an employee or officer of the intended recipient.